Sorry needn’t be the hardest word

Campaign launched so companies can behave with compassion

Need for greater awareness and clarification of existing law

The law, lawyers and insurers should make it easier for businesses and organisations to apologise when mistakes are made. This will help people who have suffered to recover, according to Apology Clause (www.apologyclause.com), a new campaign launched today.

We have seen in the Grenfell Tower aftermath how vital it is to show compassion in the wake of disaster. It’s important for those who have suffered and those in positions of responsibility. Yet, at present, the law and professional advisers too often deter compassion.

Faizah Shaheen, in suing Thomson Holidays because she was detained at Doncaster airport for reading a book about Syria, said: “all I want is an apology for being treated this way”[i].

The fear of admitting liability and incurring penalties too often stops businesses from behaving decently and stepping up when things go wrong.

This not only leaves the people affected in limbo, but can increase the costs of doing business and undermine business reputation. Where human tragedy or loss is involved, it makes it harder for the victims to move on from the trauma.

Evidence[ii] shows a simple apology can be crucial in enabling those who have suffered to come to terms with what has happened and get the closure they need to move on. A common side-effect of trauma is that victims blame themselves[iii], which is more likely to occur if others shun responsibility.

The Compensation Act 2006 is very clear that “an apology, an offer of treatment or other redress, shall not itself amount to an admission of negligence or breach of statutory duty”[iv].

Yet businesses rarely behave this way, often because their lawyers or insurers advise against it. These advisors may be unaware of the 2006 law, or they think it is not clear and they do not want their clients to become test cases. A simple clarification of the Compensation Act 2006 would solve this problem.

Apology Clause, the new campaign group consisting of senior communications advisers, lawyers and business people, aims to raise awareness of the current law, and to persuade the Government to clarify it.

They have asked David Lidington MP, Secretary of State for Justice, and Greg Clark MP, Secretary of State for Business, Energy & Industrial Strategy (BEIS), to clarify the Act or create a new one. BEIS says it is not their issue, though it affects businesses, and Justice says that it is not yet a priority, though they welcome efforts to promote awareness of the 2006 Act.

Many countries, including Australia, Canada and the US, have for many years had what is known as an Apology Act which makes it possible to apologise without admitting liability. Scotland introduced its own separate Apology Act just last year. In July 2017 Hong Kong passed similar legislation.

Professor Prue Vines, visiting professor at the law school in the University of Strathclyde, and co-director of the private law research and policy group in the faculty of law at the University of New South Wales, said: “In the major common law countries only New Zealand and England and Wales do not have apology-protecting legislation.”

Legal experts[v] believe that the UK clause is not sufficiently clear or well known to give lawyers the confidence to use it, so it is rarely used and no case law has developed.

In Canada, the Apology Act is sufficiently clear and well established to enable the CEO of Maple Leaf Food to say that to recover from disaster the “two sets of advisors he didn’t listen to were the lawyers and the accountants”[vi].

The campaigners are also calling on

the legal profession to raise awareness of the existing Compensation Act and to use it wherever possible to build a body of case law

the insurance industry to make it easier for businesses to apologise without invalidating their insurance policies, waiving the right to defend claims or automatically incurring penalties.

They have set up a petition on change.org saying: “we call on the Secretary of State for Justice to amend the Compensation Act 2006 to clarify the apology clause. Businesses should be able to apologise so people who have suffered can move on.”

The campaign is led by Guy Corbet, Sue Stapely (a solicitor) and Nick Wright, long-standing communications and crisis management experts. All have spent decades helping businesses manage their reputations. They have frequently been frustrated when their clients have been told the law will not allow them to do the right thing.

Guy Corbet said: “Too often the first instinct in business is to do the wrong thing and behave like an ostrich. That is not good enough for people who have suffered, and it cannot be good for business. The law is clear that an apology need not be an admission of responsibility. But it is not well known, and no lawyer wants their client to be a test case.

“Greater use of this clause and a minor legislative change could have a huge impact to make things better for the people who have suffered when things go wrong. It would also make it easier for business to respond as it should in a human and compassionate way.

“It is hard to see how a simple piece of business and consumer-friendly legislation like this could do anything but good, meet approval from opposition parties and reflect well on any government.”

The benefits of this simple change are significant:

Reducing the harm to people who have suffered who very often need the closure an apology can bring to move on and start healing

Reducing the reputational risks that businesses entertain, creating a better environment for sales, profitability and growth

Potentially reducing the number and value of legal claims, avoiding a “compensation culture” as the Compensation Act 2006 set out to achieve

Reducing insurance costs, and so putting downward pressure on premiums and improving business efficiency

Demonstrating that companies do have a conscience and are not just driven by the profit motive.

Apology Clause acknowledges the danger of “hollow” or meaningless apologies and so the campaign includes a requirement for an apology to include a commitment to look at the circumstances behind the event, with a view to preventing it from happening again.

The campaign has been set up pro bono by long-standing independent communications advisers. They have too often seen businesses shy away from doing what they feel they should for fear of the consequences. They are:

Nick Wright was communications director at accountancy and advisory firm BDO, an independent member of the Government Communications Service Capability Review and before that led the employment engagement practice at leading corporate agency Fishburn Hedges

Sue Stapely is a solicitor, former BBC TV programme maker, head of PR at the Law Society and author of Media Relations for Lawyers, previously spent a decade at leading agency Quiller Consultants and before that was a director at Fishburn Hedges. She has also worked pro bono on many miscarriage of justice cases including that of Sally Clark.

Guy Corbet was a managing director at leading communications agency Brands2Life, having previously spent 18 years at Fishburn Hedges where he created consumer brand subsidiary Seventy Seven, and was group marketing director for the Fishburn Hedges Group of agencies.

At present, the law does not define what it means by an apology or the scope of matters that it relates to, which varies widely around the world. Nor is it clear if an apology is deemed in legal terms to be an admission, or if it is simply not admissible as an admission of liability, or whether an apology would void insurance contracts.